Plan to split rollback could complicate fight for greens

Source: By Maxine Joselow, E&E News reporter • Posted: Sunday, September 8, 2019

If the Trump administration splits up its rollback of Obama-era clean car standards, the ensuing litigation will be more complicated, according to legal experts.

The White House is reportedly planning to divide the high-profile regulatory rollback into two discrete components, E&E News and other outlets reported yesterday (E&E News PM, Sept. 5).

The first component involves revoking California’s legal authority to set tougher vehicle emissions rules than the federal government.

The second involves freezing fuel economy standards at 2020 levels through 2026, rather than increasing their stringency each year as President Obama had envisioned.

Under the Clean Air Act, California has historically been granted a waiver to set tougher tailpipe pollution rules than the federal government. Thirteen other states and the District of Columbia have adopted those more stringent regulations.

EPA and the National Highway Traffic Safety Administration are drafting a discrete proposal to revoke California’s Clean Air Act waiver, according to a source with knowledge of the situation.

The two agencies could submit the proposed rule to the White House Office of Information and Regulatory Affairs as soon as today, the source said.

Separately, the two agencies continue to refine a longer-term proposal to freeze fuel economy requirements at 2020 levels through 2026.

Attorney General Xavier Becerra (D), a vocal foe of President Trump, will likely file suit against both elements of the rollback. So will a litany of environmental groups.

Yet the decision to split the rollback into two discrete parts could significantly complicate the litigation, said Julia Stein, an attorney at the Emmett Institute on Climate Change and the Environment at the UCLA School of Law.

A challenge to the revocation of California’s Clean Air Act waiver would likely be heard in the 9th U.S. Circuit Court of Appeals, which is headquartered in San Francisco, Stein said.

Meanwhile, a lawsuit over the fuel economy freeze would likely be heard in the U.S. Court of Appeals for the District of Columbia Circuit.

“You would have two different courts considering issues where there may be some overlap,” Stein said. “You also have the possibility for inconsistent results between the two courts.”

In addition, the existence of two different court venues and regulatory proposals could make it harder for some environmental groups to mobilize in opposition, said Dan Becker, executive director of the Safe Climate Campaign.

“It means we’ve got to scramble to do two separate sets of legal defense,” Becker said. “So that’s a resource problem for strapped environmental groups like us.”

A spokeswoman for Becerra said the California attorney general will wait to see whether the administration follows through and actually splits up the proposal.

“We watch what the Administration does, not what it says,” the spokeswoman said in an email. “Certainly AG Becerra has made his position on protecting the clean car standards and California’s waiver clear. It would be a shame if the Administration chose to put its priorities ahead of public health, environmental progress and science.”

Murky motivations

It remains unclear why the Trump administration is considering splitting up the car rules rollback. A White House spokesman declined to comment for this story.

One school of thought is that Trump is lashing out at California, a liberal bastion that has resisted his administration on issues including immigration, health care and the environment.

In particular, the California Air Resources Board angered Trump this summer by signing a deal with four automakers to improve the fuel economy of their cars and trucks in the coming years, regardless of the rollback (Greenwire, July 25).

Another related theory is that the White House is seeking to discourage more automakers from joining the deal with the Golden State. But Stein pushed back on this notion.

“If the administration’s intent was to dissuade automakers from joining the agreement, I’m not sure that would follow,” Stein said. “Bifurcating these two actions, to me, adds to the level of regulatory uncertainty. It doesn’t decrease it. And the agreement was really an attempt at creating more certainty for those four automakers.”

A third theory is that the Trump administration has grown frustrated with repeated delays concerning the rollback and wants to expedite the whole process.

The administration initially projected it would finalize the rollback in June. But that deadline came and went, and three months later, it has little progress to show.

“This may be an indication that they’re having trouble with getting the rollback out, and maybe they actually care more about just taking a whack at California,” said Dan Farber, a law professor at the University of California, Berkeley.

He added, “The rollback is so complicated and factual that it could take a long time for a court to decide. If you split it in half, there’s a chance that you could get both of them decided more quickly, particularly the waiver question.”

Ultimately, the November 2020 presidential election looms large over the timing of the rollback. The administration runs the risk of having a Democrat oust Trump before litigation is decided, rendering the whole issue moot.

“I think they would ideally like to get all these big moves through litigation by November,” Farber said. “If Trump loses the election and these things are still pending after Election Day, it’s quite likely a court will just sit on it until Inauguration. So time is getting a bit tight.”